State Of Kerala vs Indira
2023 Latest Caselaw 5286 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                             PRESENT
         THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
 MONDAY, THE 24TH DAY OF APRIL 2023 / 4TH VAISAKHA, 1945
                       RSA NO. 468 OF 2004
 AGAINST THE DECREE AND JUDGMENT DATED 20.12.1997 IN OS
   554/1996 OF ADDITIONAL MUNSIFF COURT, IRINJALAKUDA
        AS 71/1998 OF PRINCIPAL SUB COURT, IRINJALAKUDA
APPELLANTS/DEFENDANTS:

    1      STATE OF KERALA
           REPRESENTED BY THRISSUR DISTRICT COLLECTOR,
           THRISSUR,, AYYANTHOLE.

    2      EXECUTIVE ENGINEER IDAMALAYAR
           IRRIGATION PROJECT DIVISION NO.1, CHALAKUDY.

    3      EXECUTIVE ENGINEER MINOR IRRIGATION
           DIVISION, THRISSUR.

    4      ASST.EXECUTIVE ENGINEER MINOR
           IRRIGATION, SUB DIVISION, CHALAKUDY.

    5      EXECUTIVE ENGINEER ADDITIONAL
           EXECUTIVE DIVISION, CHEMBUKKAVU, THRISSUR.

           BY ADV SR.GOVT.PLEADER

           SRI. ASHWIN SETHUMADHAVAN GP



RESPONDENTS:

    1       INDIRA, MELUR VILLAGE DESOM, MUKUNDAPURAM TALUK.

    2       DR.REMA,   MELUR VILLAGE DESOM, MUKUNDAPURAM
            TALUK.

    3       CHINDA, MELUR VILLAGE DESOM, MUKUNDAPURAM TALUK.

    4       SUDHA, MELUR VILLAGE DESOM, MUKUNDAPURAM TALUK.
 RSA NO. 468 OF 2004

                               ..2..


        BY ADVS.
        SRI.KAROL MATHEWS SEBASTIAN ALENCHERRY
        SRI.V.V.SIDHARTHAN SR.
        SRI.D.G.VIPIN


     THIS   REGULAR   SECOND     APPEAL   HAVING    COME    UP    FOR
ADMISSION   ON   24.04.2023,    THE    COURT   ON   THE    SAME   DAY
DELIVERED THE FOLLOWING:
 RSA NO. 468 OF 2004

                            ..3..




                  J U D G M E N T

Today this second appeal came up before this

Court for admission after more than 19 years of

filing this second appeal. The State is the

appellant. In a suit for mandatory injunction

and permanent injunction, a decree has been

granted in favour of the plaintiffs. There was a

temporary injunction as against the officials of

the State Government, pending suit. That appears

to have been violated and as a result, the trial

court imposed a penalty of Rs.50,000/- (rupees

Fifty Thousand only) to be recovered from the

State Government. The judgment of the trail

court has been confirmed by the Appellate Court.

2. The brief facts involved in this case

are as follows:

3. The plaintiffs are residing on the

eastern side of Chalakkudy river. Construction RSA NO. 468 OF 2004

..4..

of check dam was proposed by the Government and

contractor started the construction. On half

way, the construction appears to have been

stopped. As a result, through the eastern gap of

the check dam, water reached to the house of the

plaintiffs. The plaintiffs approached the

officials to immediately complete the

construction and prevent the flowing of water to

the plaintiffs' house. No response was received.

4. In a suit filed by the plaintiffs, an

application for interim injunction was filed and

injunction was granted. The commission report

filed in the matter fully supports the case of

the plaintiffs. The trial court granted the

decree for permanent injunction and mandatory

injunction to construct the check dam and

retention of the wall on the western side to

prevent further damages to the plaintiffs' house.

5. An interlocutory application was filed

by the plaintiffs to recover Rs.50,000/- being RSA NO. 468 OF 2004

..5..

the value of the loss suffered by them,

consequent upon the disobedience of the interim

order. The interim order, which was granted to

prevent causing any damage to the plaintiffs'

house. The court below, while disposing the

interlocutory application along with the final

judgment, granted a sum of Rs.50,000/- to be

recovered from the Government.

6. The learned Government Pleader submits

that there was absolutely no evidence to

calculate the loss suffered by the plaintiffs.

It is further submitted that by "Act of God"

water reached to the house of the plaintiffs and

the Government officials or contractor cannot be

blamed for that.

7. The courts below rendered the decree and

judgment on findings on facts. Neither any

question of law nor substantial question of law

does arise in this matter. Factual appreciation

of evidence including the commission report RSA NO. 468 OF 2004

..6..

cannot be reversed at this stage. It is to be

noted that the trial court, based on the

commission report, found that much damage has

been caused to the plaintiffs' house and the

Government officials or the contractor had

opportunity to prevent causing damage to the

plaintiffs' house by complying the interim order.

Rs.50,000/- has been imposed more as penalty for

non compliance of the order rather than

proceeding against the officials for violating

the interim order.

In such circumstances, I find no reason to

admit this case. The second appeal fails and

dismissed in limine.

Sd/-

A.MUHAMED MUSTAQUE JUDGE PR